The Jurisdiction of the Supreme Court

The constitution of India provides regular appeal to the SC from decisions of the high courts in Article 132-134, but still some cases where justice might require the interference of the supreme court of India for deciding not only outside the purviews of high courts under article 132-134 but also any other court or tribunal within the territory of India, Such residuary power outside the ordinary law relating to appeal is conferred upon the Supreme Court by article136.

Under Article 136 of the Constitution of India the Supreme Court shall have the power to grant special leave to appeal [1] –

a) From any judgment, decree, determination, sentence or order,

b) In any cause or matter,

c) Passed or made by any Court or Tribunal, in the territory of India.

The supreme court a plenary jurisdiction in the matter of entertaining and hearing appeals, by granting special leave, against any kind of judgement or order made by any court or tribunal except a military tribunal.

In any proceeding and the exercise of the power is left entirely to the discretion of the supreme court unfettered by any restriction and this power cannot be curtailed by any legislation short of amending the article itself. [2]

In civil cases the special leave to appeal under this article would not be granted unless there is some substantial question of law or general public interest involved in the case, similarly in criminal cases the supreme court will not interfere under article 136 unless it is show that “substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.” [3]

A 132 allows an appeal to the SC from a judgment of the High Court from any judgment, decree or final order if the High Court provides a certification for the same if the case involves questions of law of Constitutional importance. A 133 allows appeals from any judgment, decree or final order in civil proceedings subject to the provisions of the article. Similarly A 134 allows appeals from any judgment, decree or final order in criminal proceedings subject to the provisions of the article.

These articles subject to A 136 A seem to allow litigants an appeal to the Supreme Court as a matter of right in certain cases. [4] Therefore, the words “in its discretion” in A 136 must be taken to imply that a special leave to appeal is not a right but a privilege granted by the Supreme Court in the exercise of it’s discretion in certain cases. However, an application for special leave to appeal by the Supreme Court may be filed as a matter of right.

Generally Apex Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.

Scope of article 136

While deciding the scope of appeal by special leave petition under article 136 Supreme Court says that article 136 is like as article 226, mean it was a discretionary remedy and SC was not bound to interfere even if there is an error of law or fact in the impugned order.

The Article 136 of the Constitution of India reads as under:

“(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgement, determination, sentence or order passed or made by any Court or Tribunal constituted by or under any law relating to the Armed Forces.” [5]

The scope of Art 136 is very comprehensive and it invests the supreme court with a plenary jurisdiction to hear appeal, in the case of Delhi judicial service assn v state of Gujarat [6] the supreme court can even disregard the limitation contained in articles 132 to 134 on this appellate jurisdiction and hear appeals which it could not otherwise hear under these provision.

Actually article 132-134 provide for regular appeals from the high courts to the supreme court .but there may still remain cases falling outside the purview of these articles where it may appear necessary to hear appeals in the interest of justice. The power of the supreme court under article 136is unaffected by article 132,133,134 and 134A in view of the expression “not with standing anything in this chapter “occurring in art 136.

Article 132 to 134 permit appeals only against decisions of the high courts on the other hand article 136 does not impose any such restriction. In the article 136 the phrase ‘any court’ and thus empowers the supreme court to hear appeals from judgments given not only bye the high courts but even by a subordinate court, if the situation demands that its order should be quashed or reversed even without going through the usual procedure of filling an appeal in the high courts.

In the case of Rajendra kumar v state [7] The supreme court can heard an appeal from the decision of the chief judicial magistrate , the appellant did not go to the high court but came straight to the supreme court, however supreme court does not entertain such petition.

The jurisdiction conferred under article 136 has the following distinguishing feature [8] :

1. The power to grant special leave is not confined to judgement decrees or final orders of the high court. It can be granted even against the decision of the lower court such as of magistrates. [9]

2. Appeals shall lie from orders or determination of all courts or tribunals in the territory of India except those mentioned in clause (2)

3. There is no condition that the order of the court should be final order .hence appeals against interlocutory orders are permissible .but normally an appellant is expected to exhaust the other remedies provided in law.

4. An appeal shall lie from any order or determination of a court or a tribunal. The order or determination need not be final.

5. The order or determination of a court or tribunal may be in any cause or matter, civil criminal or otherwise.

6. No law making any determination of any court or tribunal final can limit the jurisdiction of the court in article 136. [10]

Supreme court observed in the case of Pritam singh v state [11] that “court will not grant special leave unless it is shown that exceptional and special circumstances exist that substantial and grave injustice has been done and that the case in question presents feathers of sufficient gravity to warrant a review of the decision appealed against” [12] .its means that once special leave is granted by the court ant the matter is registered as an appeal the court does not take into cognisance all the points which may arise on appeal and decide them on merits.

The court has taken the stand that the discretionary power which is available to it at the stage of grant of special leave would be available to the court even at the time of hearing the appeal . thus ,only points can be urged at the final hearing of the appeal which were fit to be urged at the preliminary stage when leave to appeal was asked for. It would be illogical to adopt different standards at two different stages of the same case. In the case of N. Suriyakala vs a Mohandoss and other [13] clarify the scope of article 136 of the constitution according to which article 136 is not a regular forum of appeal at all. It is a type of a residual provision which allow the Supreme Court to interfere with the judgment or order of any court or tribunal in India in its discretion.

Justices Markandey Katju and R.M Lodha pointed out in various judgement that article 136 never meant to be an ordinary forum of appeal at all. “It has become a practice of filing SLPs against all kinds of orders of the High Court or other authorities without realising the scope of Article136.” [14]

Current situation regarding special leave petition

Article 136 of the constitution on the Supreme Court is discretionary, it does not confer a right to appeal on a party to litigation, Supreme Court provide it only for satisfying the demand of justice. [15]

Supreme court observe In the case of Ashok Nagar Welfare Association Vs. R.K. Sharma [16] that if cases where special leave is granted, the discretionary power vested in the Court continues to remain with the Court even at the stage when the appeal comes up for hearing.

At present practice of filling slp against all kinds of orders of high court or other authorities without even realise the scope of article 136, its seems that article 136 never meant to be a ordinary forum of appeal at all. the role of supreme court is to deal with the important cases which related to the issue like constitutional questions or where grave injustice had been done, but this is not happening now days and the apex court entertains all kinds of cases which make burden on it, because of that supreme court cant able to deal with important question relating to the constitution.

In the latest case of Mathai @ Joby v. George, [17] the court discussed and relied on Senior Advocate Mr. K. K. Venugopal’s R.K. Jain Memorial Lecture delivered on 30/01/2010 and quoted a few statistics reproduced herein.

In the year 1997 there were only 19,000 pending cases in the Supreme Court. Now, there are over 55,000 pending cases. In a few years time the pendency will cross one hundred thousand cases. In 2009 almost 70,000 cases were filed in the Supreme Court of which an overwhelming number were Special Leave Petitions under Article 136. Each of the 13 Divisions Benches have to dispose off about 60 cases in a day. In matters involving very heavy stakes, 4-5 Senior Advocates on either side would be standing up at the same time and addressing the court, sometimes at the highest pitch possible. [18]

But if we talks about U.S. Supreme Court it hears only about 100 to 120 cases every year and the Canadian Supreme Court hears only 60 cases per year.

According to Frankfurter J. adequate study, reflection and discussion on the part of judges is necessary for that fruitful interchange of minds which is indispensable to thoughtful, unhurried decision making and its formulation in learned and impressive opinions. This has become a nearly impossibility in the SC in the current state of things. [19]

This case has primarily dealt with the issue of the abuse of the Constitutional provision of filing SLPs. present days all kinds of special leave petitions are being filed in the Supreme Court against every kind of order. For instance, if in a suit the trial court allows an amendment application, the matter is often contested right up to the SC. Similarly, if the delay in filing an application or appeal is condoned by the Trial Court or the appellate court, the matter is fought up to the SC. Consequently, the arrears in the SC are mounting and this Court has practically been converted into an ordinary appellate Court. This was never the intention of Article 136 of the Constitution. [20]

In Mathai @ Joby v. George [21] the SLP has been filed because the trial court denied a second opinion on the forensic tests on a will. The case referred to a plethora of cases to forward the view that such SLPs should not be entertained by the court or that not all SLPs for any reason and cause should be allowed. It forwarded the following views in N. Suriyakala Vs. A. Mohandoss and Others, [22] clarify the scope of article 136 of the constitution according to which article 136 is not a regular forum of appeal at all . it is a type of a residual provision which allow the supreme court to interfere with the judgment or order of any court or tribunal in india in its discreation.

In RamSaranDas and Bros.v.Commercial Tax Officer, Calcutta &Ors. [23] And Kunhayammed v. State of Kerala [24] the SC held that the power under A 136 has to be exercised sparingly and only in exceptional cases. [25] The bench stated that in Pritam Singh v. The State [26] after laying down the above discussed opinion, the SC also observed that as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters that come up before it.The Supreme Court is the Constitutional Court of the country. in Various cases filing slp makes apex court into a dispute resolution forum, this was not the intention of the constitutional provision ,so it becomes very important and it also stated in the judgment of case Mathai @ Joby v. George the, that a Constitution Bench of the SC lay down guidelines and rules under A 145 (3) of the Constitution as to what kind of cases should be entertained in special leave petitions.

guidelines for the entertaining of SLPs

For the purpose of resolving the problem of burden on supreme court and entertaining the slp without realize the scope of article 136, supereme court should curtail for entertain slp,

In the case of Mathai @ Joby v. George certain guidelines can be put forth for the uniformity and restriction of entertaining SLPs. Here are some guidelines that can be considered for proposal, most of which have been suggested by Senior Advocate Mr. K.K. Venugopal and approved by the bench:-

1. “All matters involving substantial questions of law relating to the interpretation of the Constitution of India.

2. Substantial questions of law of general importance.

3. All matters of national or public importance.

4. Validity of laws, Central and State.

5. After Kesavananda Bharati, the judicial review of Constitutional Amendments.

6. To settle differences of opinion of important issues of law between High Courts.

conclusion

The constitution of India allow to appeal in the supreme court from the high courts in article 132- 134, there are some cases where appeal can be filed direct to the supreme court , that residuary power are outside the purview of ordinary law ,and its conferred under the sec 136 of constitution of India .in this sec supreme court have the power to grant special leave petition from any judgement ,decree or order , in any cause or matter or passed by any court or tribunal in the territory of India.

Special leave petition significantly altered the jurisdiction of supreme court ,in the case of Pritim singh v the state [27] supreme court observed that a more or less uniform standard should be adopted for granting special leave, now days its so much burden on the case regarding slp in supreme court, and supreme court are entertaining against all sundry kinds of orders passed by any court or tribunal ,if these things continuously followed by supreme court then after some time supreme court will definitely collapse under its own burden.

For break off this collapse and for purpose of resolving the problem of burden Supreme court should curtail its jurisdiction, in the case of Mathai @ Joby v. George, [28] Senior Advocate Mr. K.K. Venugopal given some guideline which talks about entertaining of slp and majority bench accepted it. so we have to follow these guidelines and if we will not doing this then its for sure supreme court will collapse under its own burden.

The Constitution Bench may also consider in the case of Mathai @ Joby v. George, appointing some senior Advocates of this Court as Amicus Curiae to assist in the matter so that it can be settled after considering the views of all the concerned parties.